Delhi District Court
I) H. Maregowda & Etc. vs . Thippamma & Orss. on 14 May, 2010
IN THE COURT OF SH. ANAND SWAROOP AGGARWAL
SENIOR CIVIL JUDGECUMRENT CONTROLLER
PATIALA HOUSE COURTS, NEW DELHI
Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02
Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09
M/s Kadam Marketing Ltd.
Regd. Office:R868, New Rajender Nagar,
New Delhi110060
Showroom : 108, Bhandari House,
Nehru Place
New Delhi110019 ........Complainant
Versus
1. M/s Unity Power & Security Technologies Pvt. Ltd.
F193, Ladu Sarai,
New Delhi.
2. Sh. Jatinder Sarin,
Director of M/s Unity Power & Security Technologies Pvt. Ltd.
F193, Ladu Sarai,
New Delhi.
3. Mrs. Anu Sarin,
Director of M/s Unity Power & Security Technologies Pvt. Ltd.
F193, Ladu Sarai,
New Delhi.
Residential address of addressee No. 2 & 3.
17A, Evershine Apartment,
Vikas Puti, Delhi110018. ........ Accused
A. Date of institution of
the complaint : 18.07.2002
B. Date of conclusion of final
Anand Swaroop Aggarwal
SCJCumRC/New Delhi
Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02
Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09
Page 1/14
arguments & fixing the
matter for orders : 04.05.2010
C. Date of Judgment : 14.05.2010
D. Final Order : Convicted u/s 138 NI Act.
r/w 141 NI Act.
COMPLAINANT UNDER SECTION 138 OF THE NEGOTIABLE
INSTRUMENTS ACT, 1881 R/W SECTION 200 Cr.PC
J U D G M E N T
This complaint under Section 138 of the N.I. Act, 1881 has been filed by the complainant company against the accused with a prayer to summon, try and punish the accused for the offence u/s 138 NI Act.
In brief case of the complainant against the accused persons is that complainant is a company duly incorporated under the Companies Act having its incorporation No. 5530093. Further, as alleged, complainant has duly authorized Sh. O.P. Sharma, Manager of the complainant company to file, institute and to proceed with the present complaint on behalf of the complainant vide its resolution dated 03.06.2002. As per the complainant, complainant is interalia engaged and deals in the sale and purchase of hardware of computers and its allied material from the abovesaid addresses.
Further, as alleged by the complainant, the accused No. 1 is a company and accused No. 2 and 3 are the directors of accused No. 1 and they are all responsible and incharge for the conduct of day to day business of the accused No. 1. As alleged, on 07.02.2002, accused persons purchased five Tata Liebert UGXT1000VA 9/20 MIN for a sum of Rs.1,40,400/ against invoice No. NP/13898 dated 07.02.2002 and on the purchase of aforesaid Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 2/14 material accused persons gave a post dated cheque dated 06.05.2002 to the complainant for a sum of Rs. 1,40,400/ vide cheque No.969571 drawn on State Bank of Patiala, DDA Flats, Kalkaji, New Delhi. The said cheque, as alleged, was finally deposited by the complainant in its bank for encashment but the same was dishonoured by the banker of the accused vide memo dated 24.05.2002 with the remarks "EXCEEDS ARRANGEMENT", which was received by the complainant on 27.05.2002. Thereafter, the complainant got issued a legal notice from its advocate vide Ref. No. P12/2002/013 dated 04.062002. The said notice, as alleged, was sent to the accused persons on their office address and residential address of accused No.2 and 3 by Regd. AD & UPC which was duly received by them on both the addresses. As alleged, despite the aforesaid notice received by the accused persons, the accused persons have not so far paid the cheque amount of Rs.1,40,400/ to the complainant. Hence, this complaint.
2) Vide order dated 20.09.02, Ld. Predecessor of this court was pleased to summon the accused for the offence under Section 138 N.I. Act.
3) Vide order dated 07.06.2004, accused were served with the notice u/s 251 Cr. P.C. for offence under Section 138 NI Act, to which accused pleaded not guilty and claimed trial.
4) To substantiate its case on judicial file, complainant has examined one witness namely Mr. O. P. Sharma, Branch Manager,as CW1. Vide order dated 24.10.05 complainant's evidence was closed by Mr. Rajesh Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 3/14 Manchanda, Adv. for the complainant by making a separate statement to that effect. On 06.03.10, statement of accused persons was recorded under Section 313/281 Cr.P.C. Accused no. 2 Mr. Jitender Sarin was examined in his individual capacity of an accused as well as on behalf of accused no. 1 company. Both accused no. 3 and 2 appeared in the witness box in their own defence, as DW1 Mrs. Anu Sarin and DW2 Mr. Jitender Sarin and thereafter, DE was closed by both the accused by making a joint statement to that effect on 03.04.10.
5) I have heard Sh. R. Ramachandran, Adv. for the complainant and Sh. Pramod Kumar, Adv. for the accused persons. Ld. Counsel for the complainant has also filed written submissions. In the course of arguments Ld. Counsel for the complainant has relied upon the following case laws:
i) H. Maregowda & etc. Vs. Thippamma & orss.
MANU/KA /0589/1999
ii) Dhanvantrai Balwantrai Desai Vs. State of Maharashtra
MANU/SC/0150/1962
Ld. Counsel for the complainant has argued interms of written submissions. On the other hand, counsel for the accused has submitted that there was no transaction between the complainant and the accused and the cheque in question has been obtained by the complainant unlawfully. Counsel for the accused has further submitted that complainant and the accused were not known to each other previous to the dealing in question and still the complainant had given goods to the accused, as alleged, against post dated cheque. As per counsel for the accused this conduct of the complainant is highly improbable. Further, counsel for the accused has Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 4/14 submitted that complainant has not placed on record any proof regarding delivery of the goods to the accused against invoice/challan Ex. CW1/3. Further, counsel for the accused has submitted that challan like the one, as is Ex. CW1/3, can be easily prepared by the complainant. It is vehemently submitted by the counsel for the accused that no business whatsoever had been transacted between the complainant and the accused. Further, counsel for the accused submits that no requisition of the accused placing an order on the complainant for supply of 5 Tata Liebert UPS has been placed on record/proved by the complainant. Further, counsel for the accused submits that cheque in question was given without mentioning the name of the payee thereon and complainant has forged the cheque in question by filling up its own name. Further, it is submitted on behalf of the accused that CW1 Mr. O. P. Sharma has not been able to place on record his identity card. Counsel for the accused submitted that all the employees of the accused company have been provided with the I.D. Card, but even then Mr. O. P. Sharma, CW1 has not been provided with the I.D. Card by the complainant company. As per counsel for the accused this creates doubts as regard the identity of Mr. O. P. Sharma, the CW1 as well as his authority to appear on behalf of the complainant and pursue the present complaint for an on behalf of the complainant company. Counsel for the accused submits that corporate governance rules are being followed by the accused company, but it is not so with the complainant company.
In the rejoinder arguments ld. counsel for the complainant has submitted that the factum that the accused has not replied the statutory demand notice, despite having been served with the same goes to suggest Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 5/14 that accused in fact had no defence whatsoever. Further, counsel for the complainant submitted that even after having been served with the summons issued by the court accused did not make any complaint to the police or any other authority. Further, as per counsel for the complainant, even during the trial of the present case no complaint has been made to any authority whatsoever. As per Counsel for the complainant this all suggest that the accused had no grievence/defence against claims of the complainant company herein. Further, counsel for the complainant has submitted that the accused has not placed on record any proof regarding the payment made by him to Tata Liebert on account of purchases having been made by the accused from the said company directly. Further, counsel for the complainant submitted that the amount of the cheque tallies with the amount of the invoice/challan Ex. CW 1/3. Further, counsel for the complainant submits that business transaction are conducted on the basis of good faith between the parties and in a particular case where a party purchasing the goods is giving his cheque as it is not improbable/unbelievable that first delaing between the parties cannot happen in the manner as has happened in the present case. This submission of the counsel for the complainant has been countered by ld. counsel for accused submitting that if cheque was really given to the complainant, as alleged no explanation has come on record, as to why the complainant company had not got mentioned the name of the complainant company in the cheque as payee of the cheque. Further counsel for the complainant has submitted that accused in the present case has failed to rebut the presumption under section 139 of the N.I. Act and under Section 118 of the N.I. Act exising in favour of the complainant and against the Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 6/14 accused.
6. I have gone through the material available on judicial file very carefully and also I have gone through the case laws relied upon by the counsel for the complainant. Also I have given a considered thought to the rival submissions made by ld. counsel for the parties keeping in view the facts & circumstances of this case as they arise from the material available on judicial file.
7. Accused No.2 Mr. Jatinder Sarin in the course of his crossexamination has deposed as under : "It is wrong to suggest that in the cheque Ex. CW1/4, date of the cheque, amount in the cheque as well as signature on the cheque, all have been written by me/my instructions. Vol. cheque in question bears my signature as well as stamp of my company and further even the amount of the cheque in words and in figures have been written as per my instructions, but none of the other particulars in the cheque are in my handwriting or have been written under my instructions. It is correct to suggest that cheque in question was issued by me as a payment for Tata Libert UPS. Vol. however it was issued for some other company. Further, I had not issued the cheque in question for the item, as has been specified by serial no. UGXT1000VA 9/20MIN."
Also in the course of his statement u/s 313/281 Cr. P.C., accused No.2 Mr. Jatinder Sarin has stated as under : "Que 2) Further it has come in evidence against Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 7/14 you that on 07.02.2002 you had purchased five Tata Liebert UGZT1000VA 9/20 MIN for a sum of Rs.1,40,400 against invoice No. NP/13898 dated 07.02.2020. Original Bill is Ex. CW1/3. What you have to say?
Ans) We had purchased five UPS from Tata Liebert Ltd., but I had not purchased the same from the complainant. I have no idea about the bill Ex. CW1/3 but as a matter of fact I had made no purchases from the complainant. I had no dealings whatsoever with the complainant company nor I ever issued any cheque in favour of the complainant company.
Que 3) Further it is in evidence against you that on the purchase of aforesaid material you had given a post dated cheque No. 969571 dated 06.05.2002 for a sum of Rs.1,40,400/ drawn on State Bank of Patiala, DDA Flats, Kalkaji, New Delhi to the complainant. Cheque is Ex. CW1/4. What you have to say?
Ans) It is incorrect. In the cheque in question all the particulars except the name of the payee have been written under my instructions, but name of the payee in the cheque has neither been filled up as per my instructions nor by myself personally. Cheque in question was given to Tata Liebert. We do not know as to how complainant came into possession of the cheque in question when we were having no dealings whatsoever. Name of the payee has been forged in the cheque in question."
Thus undisputedly cheque in question bears the signatures of the accused no.2 being the director of accused no.1 Company. Further as per statement of accused no.2 recorded u/s 313/281 Cr. P.C. all the particulars of the cheque except the name of the payee have been written on the cheque Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 8/14 Ex. CW1/4 under his instructions. Cheque also bears signature of the accused alongwith stamp of the accused no.1 Company. Also to prove the liability of the accused to pay the cheque amount complainant has proved on judicial file InvoicecumChallan as Ex. CW1/3. Further ledger accounts have been produced as Mark X and Mark Y. In the above mentioned circumstances, in my opinion, presumption u/s 139 NI Act can be drawn in favour of the complainant and against the accused. Also Hon'ble Supreme Court of India in a case law titled as Rangappa Vs. Sri Mohan Criminal Appeal No.1020 of 2010 decided on 7/05/2010 has observed as under : "15. ................................ Since the accused did admit that the signature on the cheque was his, the statutory presumption come into play ...................." Now as regards quantum of rebutting evidence Hon'ble Supreme Court of India in a case law reported as Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 SC 3897 has observed as under :
"23. ........................... The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in Dhanvantral Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575, where this Court reiterated the principles enunciated in State of Madras v. Vaidyanath Iyer (supra) and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the Court, but also in the nature of evidence required to rebut the two. In the case of discretionary presumption if drawn may be rebutted by an explanation which 'might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 9/14 burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under S. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the meterial before it the Court finds it existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted .................................."
Now I shall examine, whether accused in this case has been able to rebut the presumption u/s 139 NI Act or not.
As per complainant, accused had purchased five Tata Liebert UPS from it against InvoicecumChallan Ex. CW1/3. But as per accused he had purchased five UPS from Tata Liebert Ltd. but he had not purchased the same from the complainant. Accused has no idea about the bill Ex. CW1/3 but as a matter of fact, as alleged, accused had made no purchases from the complainant. Further as per accused, he had no dealings whatsoever with the complainant company nor he ever issued any cheque in favour of the complainant company. Further as per accused he had given the cheque in question to Tata Liebert and he does not know as to how complainant came in possession of the cheque in question when he (the accused) was not having Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 10/14 no dealings complainant company.
Vide order dated 20.09.2007, accused no.2 had filed his affidavit of evidence. Para. 8 of the said affidavit reads as under :
"8. That the deponent at the relevant time had dealings with M/s. Tata Liebert Ltd. and the complainant had also dealings with the said company i.e. M/s. Tata Liebert Ltd. and out of trust and faith the deponent delivered the aforesaid postdated cheque which was unsigned, and with other blanks as a security to the Tata Liebert Ltd. It is quite evident that the complainant misused the aforesaid cheque by making forged entries and forged signature in different ink. ................................................."
The abovesaid stand of the accused is totally unconsistent with the stand of the accused taken by him in the course of his statement u/s 313/281 Cr. P.C. or in the course of his crossexamination. Also it is equally pertinent to note that the suggestions corresponding to abovesaid stand of the accused has not been put to CW1 Mr. O. P. Sharma.
Also accused No.2 white appearing as DW2 has deposed as under: ".................. It is correct to suggest that cheque in question was issued by me as a payment for Tata Liebert UPS. Vol. however it was issued for some other company."
Thus accused is not consistent on his own stand; at one place accused is taking a stand that unsigned cheque with other blanks was given to Tata Liebert Ltd. as a security & at other place, accused is taking a stand that is was given as a payment for Tata Liebert UPS.
Also accused has failed to produce any document on judicial file showing that he had any dealings with Tata Liebert Ltd. No suggestion has Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 11/14 been given to CW1 Mr. O. P. Sharma that cheque in question was given to Tata Liebert Ltd. as a security. What is more important is that, accused has not placed on record any proof regarding his making payment to the Tata Liebert Ltd. regarding admitted purchase of five UPS form Tata Liebert Ltd. Not even a bold suggestion has come on record as to why M/s Tata Liebert Ltd. will collude with the complainant company and deliver a cheque for Rs.1,40,400/ to the complainant. Nothing has been brought on record as to why complainant company will file a false case against the accused. Despite having been served with the notice Ex. CW1/6 accused did not make any complaint to police or other authority regarding alleged forgery/misuse of the cheque in question. Accused even did not make a communication with the Tata Liebert Ltd. as to why it has given the cheque to the complainant herein. Accused did not do so despite the fact that he had the assistance of his lawyer.
In view of above detailed discussion, it can be said that accused is not consistent about his defence, and he has miserably failed to rebut the presumption u/s 139 NI Act by adducing cogent, convincing and reliable evidence.
8. DW1 Mrs. Anu Sarin, accused no.3 in her Crossexamination has deposed as under : "It is correct to suggest that in the year 2002 there were two directors in the accused company and I was one of the said two directors. Vol. I was a sleeping director in the company."
The defence of accused no.3 Mrs. Anu Sarin is not she is not liable for Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 12/14 the offence u/s 138 NI Act in as much as she is/was a sleeping director of accused no.1 company. But no such suggestion has been put to CW1 Mr. O. P. Sharma in the course of his crossexamination. Thus accused no.3 cannot be allowed to take such a defence. Had such a suggestion been given to CW1 Mr. O. P. Sharma, in all likelihood, complainant company could have lead it evidence in this regard as well. The factum that not even a bold suggestion has been given to CW1 Mr. O. P. Sharma regarding Accused no.3 Mrs. Anu Sarin, being sleeping director of the accused no.1 company, suggest that accused admits the depositions of CW1 Mr. O. P. Sharma that accused no.2 and 3 are the director of accused no.1 company & they are all responsible and incharge for the conduct of day to day business of the accused no.1 Company.
Even otherwise, accused even in their own evidence has not proved that accuse no.3 Mrs. Anu Sarin was not involved in the day to day functioning the accused no.1 company. Minute book/resolution book of the accused no.1. Company could have been produced by the accused to prove/show that all the decisions of accused no.1 company are/were taken by accused no.2 Mr. Jatinder Sarin only. But it has not been done so. Accused could very well have called a witness from the banker of accused no.1 to show that accused no.3 being a sleeping director was not authorised to sign/interact with bank for and on behalf of the accused no.1 company. But, again, it has not been done so. Mere bald stand coming on record for the first time in the defence evidence of accused is not worth reliance. In view of this discussion, accused no.3 cannot escape her liable for the offence u/s 138 NI Act r/w S.141 NI Act.
Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 13/14
9. The factum of CW1 Mr. O. P. Sharma not producing any ID is immaterial in view of resolution Ex. CW1/2. The varicity/truthfulness of Ex. CW1/2 cannot be doubted in the facts & circumstances of this case. Also in the totality of facts & circumstances of this case much importance cannot be attached to the factum that complainant has not placed on record proof of delivery of goods to accused in as much as accused had given cheque Ex. CW1/4 against the purchase of 5 Tata Liebert UPS from the complainant. Further as per case law reported as Chinthala Cheruvu and another Vs. State of Andhra Pradesh & Anr. 2007 (5) RCR 676 even if it is taken that complainant had himself filled in the name of the payee in the blank signed cheque wherein accused has already mentioned all other particulars other than the name of the payee, it does not amount to an offence u/s 468 and 471 Indian Penal Code.
In view of above detailed discussion, in my considered opinion it can be concluded that complainant has been successful in proving its case on judicial file beyond reasonable doubts and accused has failed to rebut the presumption u/s 139 NI Act as evidence lead by accused are bald depositions only without possible supporting proof besides being unconsistent. As such all the accused no.1 to 3 are hereby convicted for the offence u/s 138 r/w s. 141 NI Act. Let they be heard on quantum of sentence. Pronounced in open court.
(Anand Swaroop Aggarwal) SCJCumRC/New Delhi 14.05.2010 Anand Swaroop Aggarwal SCJCumRC/New Delhi Complaint Case (u/s 138 NI Act) No. (Old) 338/1/02 Complaint Case (u/s 138 NI Act) No. (New) 4257/1/09 Page 14/14